《吳嘉玲案》的判詞指出，以普通法解釋《基本法》時︰「the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context」﹔而法院的角色是︰「construe the language used in the text … in order to ascertain the legislative intent as expressed in the language」。在法理學的角度，就是在解釋《基本法》時，應該以「目的論進路」(Purposive Approach)，確定立法原意。

1. The purposive approach taken by the Court of Final Appeal in Ng Ka Ling case

The purposive approach that the Court of Final Appeal followed is to interpret the provisions in the Basic Law in its context. That context may include other provisions in the Basic Law. In this connection, CJ Li has reiterated more than once that their conclusion has to be consistent with the purpose of the Basic Law which is to establish the Region under the principle of "one country, two systems" with a high degree of autonomy.

2. The outcome of the purposive approach in the Court of Final Appeal is to ensure that Hong Kong SAR continues to enjoy a high degree of autonomy (at least for 50 years if not more)

The purposive approach is to give effects to the main objects of Article 158, that of vesting interpretation of the Basic Law, particularly the excluded provisions, in the Standing Committee and that of authorizing the courts of the Region to interpret the non-excluded provisions, in particular to interpret "on their own" the provisions within the limits of the Region's autonomy.

In this premise, in the Ng Ka Ling case, it was concluded that the HKSAR exercising a high degree of autonomy with its different system is obliged to admit people who under its constitution are its permanent residents with the constitutional right of abode. The relevant only purpose is that there must be no derogation from the Region's autonomy.

3. Legislative Intent

I found no direct implication to ascertain the legislative intent so far as the purposive approach is concerned in the Ng Ka Ling case in the Court of Final Appeal.

Legislative intent has, however, been touched on in the judgment of Chong Fung Yuen case (cited in para 88 of the judgment of the VALLEJOS case), where

CJ Li expressly gave guidance in the task of interpretation of any provision in the Basic Law in question. CJ Li said the courts should consider what is within the Basic Law, including provisions in the Basic Law other than the provision in question and the Preamble. These are internal aids to interpretation.

Extrinsic materials which throw light on the context or purpose of the Basic Law or its particular provisions may generally be used as an aid to the interpretation of the Basic Law.

However, CJ Li also drew our attention to the fact that once the courts conclude that the meaning of the language of the text when construed in the light of its context and purpose is clear, the courts are bound to give effect to the clear meaning of the language.

The courts will not [my emphasis] on the basis of any extrinsic materials depart from that clear meaning and give the language a meaning which the language cannot bear.

Therefore, I don't think my learned friend Nathan can go far as to suggest that the Court of Final Appeal has endorsed any approach which encourages ascertainment of legislative intent which might require the court to do more than examining other provisions in the Basic Law if the language in the Basic Law is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations.

4. Findings of Vallejos case

In the VALLEJOS case, Lam J, having adopted the purposive approach in Ng Ka Ling case and having followed the guidance of CJ Li in Chong Fung Yuen case, rightly examined the relevant provisions in the Basic Law and rightly came to a conclusion that on the common law interpretation approach (namely the purposive approach and the court's roles to ascertain the legislative intent), the Impugned Provision is inconsistent with Article 24(2)(4).

5. Conclusions

In the premise, neither the Ng Ka Ling case (the only case you cited) nor the Vallejos case nor Chong Fung Yuen case assist my learned friend Nathan in reaching the conclusion that Impugned Provision is consistent with the Basic Law.

That said, I have no intention to quash my learned friend's conclusion. I believe Nathan might go by some alternative routes (which however I don't think you can easily come by from the case law in any commonwealth jurisdiction) to achieve his aim.

As far as the Court of Final Appeal is concerned, it has a duty to make a reference to the Standing Committee if two conditions are satisfied:

(1) First, the provisions of the Basic Law in question (a) concern affairs which are the responsibility of the Central People's Government; or (b) concern the relationship between the Central Authorities and the Region. That is, the excluded provisions. We shall refer to this as "the classification condition".

(2) Secondly, the Court of Final Appeal in adjudicating the case needs to interpret such provisions (that is the excluded provisions) and such interpretation will affect the judgment on the case. We shall refer to this as "the necessity condition."

(page 17 of the pdf file)

In deciding what test is to be applied in considering whether the classification condition is satisfied, a purposive interpretation has to be adopted. An important purpose of Article 158 is the Standing Committee's authorization to the Hong Kong courts including the Court of Final Appeal to interpret "on their own" the provisions of the Basic Law which fall outside the excluded provisions, particularly provisions which are within the Region's autonomy. This is an essential part of the high degree of autonomy granted to the Region.

In the light of that approach, we turn to the test. Provision X (Article 24 here), which is a provision within the Region's autonomy, must be interpreted in its context. The context naturally includes other provisions in the Basic Law which may be relevant to the construction of provision X in a number of ways. For example, they may qualify provision X and qualification may be by way of addition, subtraction or modification. Or they may lend colour to its meaning or provide a pointer to its construction.

On Mr Ma SC's argument, once an excluded provision (Article 22(4) here) is so relevant, the matter would have to be referred to the Standing Committee. The subject of the reference would not be the interpretation of provision X because it is not an excluded provision; the suggestion seems to be that the subject of the reference would be the interpretation of the excluded provision so far as relevant to the interpretation of provision X. Such a reference would withdraw from the jurisdiction of the Court the interpretation of a provision (provision X) of the Basic Law which is within the limits of the autonomy of the Region. In our view, this would be a substantial derogation from the Region's autonomy and cannot be right.

In our view, the test in considering whether the classification condition is satisfied is that put by Mr Chang SC for the applicants. As a matter of substance, what predominantly is the provision that has to be interpreted in the adjudication of the case ? If the answer is an excluded provision, the Court is obliged to refer. If the answer is a provision which is not an excluded provision, then no reference has to be made, although an excluded provision is arguably relevant to the construction of the non-excluded provision even to the extent of qualifying it.

The test gives effect to both of the two main objects of Article 158, that of vesting interpretation of the Basic Law, particularly the excluded provisions, in the Standing Committee and that of authorizing the courts of the Region to interpret the non-excluded provisions, in particular to interpret "on their own" the provisions within the limits of the Region's autonomy.

(page 19 of the pdf file)

In our view, full effect can be given to Article 22(4), according to its true interpretation, without any encroachment on the right of abode in Article 24. Article 22(4) does not apply to permanent residents of the Region. What it does apply to is the overwhelming part of the population on the Mainland who have no right of abode in the Region. They cannot enter the Region without approval notwithstanding they live in the country of which the Region forms part. It has been assumed, correctly in our view, that approval refers to approval of the Mainland authorities. Further, it provides that the numbers of persons entering the Region for settlement shall be determined by the competent authorities of the Central People's Government after consulting the Region's government.

Our conclusion is consistent with the purpose of the Basic Law of establishing the Region under the principle of "one country, two systems" with a high degree of autonomy. It is the responsibility of the Mainland authorities to grant approval to enter the Region to people in the country who are not permanent residents of the Region and to determine the numbers entering for settlement.

The Region exercising a high degree of autonomy with its different system is obliged to admit people who under its constitution are its permanent residents with the constitutional right of abode. In our view, there is no derogation from the Region's autonomy sanctioned by Article 22(4).

[88] On the common law approach, Chief Justice Li gave further guidance in Chong Fung Yuen in Section 6.3 of the judgment. The following paragraphs are often cited in subsequent cases,

"The courts’ role under the common law in interpreting the Basic Law is to construe the language used in the text of the instrument in order to ascertain the legislative intent as expressed in the language. Their task is not to ascertain the intent of the lawmaker on its own. Their duty is to ascertain what was meant by the language used and to give effect to the legislative intent as expressed in the language. It is the text of the enactment which is the law and it is regarded as important both that the law should be certain and that it should be ascertainable by the citizen.

The courts do not look at the language of the article in question in isolation. The language is considered in the light of its context and purpose. See Ng Ka Ling at pp.28-29. The exercise of interpretation requires the courts to identify the meaning borne by the language when considered in the light of its context and purpose. This is an objective exercise. Whilst the courts must avoid a literal, technical, narrow or rigid approach, they cannot give the language a meaning which the language cannot bear. As was observed in Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 at p.329Ee, a case on constitutional interpretation:"Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language."

[89] The Chief Justice discussed about the materials that the court can refer to in the process of interpretation. At p.224D to G,

"To assist in the task of interpretation of the provision in question, the courts consider what is within the Basic Law, including provisions in the Basic Law other than the provision in question and the Preamble. These are internal aids to interpretation.

Extrinsic materials which throw light on the context or purpose of the Basic Law or its particular provisions may generally be used as an aid to the interpretation of the Basic Law. Extrinsic materials which can be considered include the Joint Declaration and the Explanations on the Basic Law (draft) given at the NPC on 28 March 1990 shortly before its adoption on 4 April 1990. The state of domestic legislation at that time and the time of the Joint Declaration will often also serve as an aid to the interpretation of the Basic Law. Because the context and purpose of the Basic Law were established at the time of its enactment in 1990, the extrinsic materials relevant to its interpretation are, generally speaking, pre-enactment materials, that is, materials brought into existence prior to or contemporaneous with the enactment of the Basic Law, although it only came into effect on 1 July 1997."

[90] Despite any reference to extrinsic materials, the Chief Justice reiterated the primacy of the language used in the relevant provision to be construed. At p.224I to 225B,

"…extrinsic materials, whatever their nature and whether pre or post-enactment, cannot affect interpretation where the courts conclude that the meaning of the language, when construed in the light of its context and purpose ascertained with the benefit of internal aids and appropriate extrinsic materials, is clear. The meaning of the language is clear if it is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations.

Once the courts conclude that the meaning of the language of the text when construed in the light of its context and purpose is clear, the courts are bound to give effect to the clear meaning of the language. The courts will not on the basis of any extrinsic materials depart from that clear meaning and give the language a meaning which the language cannot bear."

I would like to provide you with the following information with a view to addressing your concern

Relevant statutes in Basic Law regarding the judicial power of the courts of Hong Kong

By Article 2, the National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law.

Article 19 provided that the Region is vested with independent judicial power, including that of final adjudication.

Article 80 provides that the courts of the Region at all levels shall be the judiciary of the Region exercising the judicial power of the Region.

Relevant statutes in Basic Law regarding the limitations to the judicial power of the courts of Hong Kong

Article 19 provides:

" The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. …"

Article 158 provides:

" The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.

The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.

The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region.

In exercising their judicial power conferred by the Basic Law, the courts of the Region have a duty to enforce and interpret that Law. They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion so that if inconsistency is established, the courts are bound to hold that a law or executive act is invalid at least to the extent of the inconsistency. Although this has not been questioned, it is right that we should take this opportunity of stating it unequivocally. In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.

Article 158(1) provides that the power of interpretation of the Basic Law shall be vested in the Standing Committee of the National People's Congress. Article 158(2) provides that the Standing Committee "shall authorize" the courts of the Region "to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region". It is clear, as is accepted by both counsel, that this contains the constitutional authorization. The words "on their own", in our view, emphasize the high degree of autonomy of the Region and the independence of its courts.

But the jurisdiction of the courts of the Region is not limited to interpreting such provisions. For Article 158(3) provides that the courts of the Region "may also interpret other provisions" of the Basic Law in adjudicating cases.

But there is a limitation on this jurisdiction as far as the Court of Final Appeal is concerned. If the courts of the Region:

"in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region."

Since it is the Court of Final Appeal which can make final judgments which are not appealable, this provision limits the Court of Final Appeal's jurisdiction. Where the conditions there prescribed are satisfied, the Court of Final Appeal has a duty to seek an interpretation of the relevant provisions from the Standing Committee.

Under Article 158, the power of the Hong Kong courts to interpret provisions of the Basic Law is "in adjudicating cases". It follows that the courts have no such power when not engaged in adjudicating cases. This reflects the well established principle in our system that the courts' role is adjudicative and not advisory. The power of interpretation of the Region's courts is as follows. Article 158 refers to:

(a) The provisions which are within the Region's autonomy; and

(b) Other provisions of the Basic Law. Within such other provisions are the two excluded categories: provisions which (i) concern affairs which are the responsibility of the Central People's Government; or (ii) concern the relationship between the Central Authorities and the Region. We shall refer to the provisions in (i) or (ii) as "the excluded provisions".

Under Article 158, the lower courts have the power to interpret (a) and (b) including the excluded provisions. The Court of Final Appeal has the power to interpret (a) and also the other provisions in (b) except the excluded provisions.

Thus, there is no limitation on the power of the lower courts to interpret all the provisions of the Basic Law. The only limitation is on the jurisdiction of the Court of Final Appeal. The language of Article 158(2) emphasizes the power of all courts of the Region to interpret "on their own" provisions which are within the limits of the Region's autonomy.

As far as the Court of Final Appeal is concerned, it has a duty to make a reference to the Standing Committee if two conditions are satisfied:

(1) First, the provisions of the Basic Law in question (a) concern affairs which are the responsibility of the Central People's Government; or (b) concern the relationship between the Central Authorities and the Region. That is, the excluded provisions. We shall refer to this as "the classification condition".

(2) Secondly, the Court of Final Appeal in adjudicating the case needs to interpret such provisions (that is the excluded provisions) and such interpretation will affect the judgment on the case. We shall refer to this as "the necessity condition."

In our view, it is for the Court of Final Appeal and for it alone to decide, in adjudicating a case, whether both conditions are satisfied. It is for the Court, not the National People's Congress, to decide whether the classification condition is satisfied, that is, whether the provision is an excluded provision. This is accepted by both counsel for the applicants and counsel for the Director.

To sum up, the Court of Final Appeal in Hong Kong enjoys the power of final adjudication, except on matters in relation to acts of the state such as defence and foreign affairs, and except on interpretation of provisions that concern affairs which are the responsibility of the Central People's Government; or that concern the relationship between the Central Authorities and the Region. On matters which the Court of Final Appeal is authorised to adjudicate, I must emphasise that such power comes from the Standing Committee of the National People's Congress and such power includes not only that of adjudication but also that of final adjudication.

What if the Court of Final Appeal makes a mistake in the interpretation of any provisions in the Basic Law which it is entitled to interpret on its own? There is no provision in the Basic Law to allow anyone to appeal against a purportedly wrong decision made by the Court of Final Appeal.

Having said that, you can always criticize the Court after losing a legal battle. But isn’t it like the behavior of an ultimate loser 陳振聰 with whom I do sympathise?

Gregg, I believe that 陳振聰feels immensely aggrieved. However, bear in mind that the decision of the Court of Final Appeal shall be final. I’d rather accept that our legal system is not perfect (as are all other legal systems) than give up our power of final adjudication. Gregg, there has to be an end point.

If the debate goes on from here, Gregg, you might want to contend that a system characterized by liberty and/or democracy and/or judicial independence should give way to some other better system. That must be beyond our discussion which is concerned only with the law.

Still, I am unable ascertain your main argument. Are you saying that (1) purposive approach is a wrong approach in interpreting the Basic Law or (2) purposive approach doesn mean ascertaining the legislative intent?

The intention of the postings is to clarify the common law purposive approach and the common law approach in ascertaining the legislative intent as illustrated in the three cases namely Ng Ka Ling case, VALLEJOS case and Chong Fung Yuen case.

It follows that neither one of the above three cases can assist you in reaching the conclusion that Impugned Provision is consistent with the Basic Law
(or in Chinese 有關《入境條例》並不違憲).

It is my emphasis that you might still reach the same conclusion, though unlikely by way of citing any of the above three cases.